Hey Trump, revoking someone’s security clearance because they criticize you is unconstitutional

This isn't Putin's Russia.

WASHINGTON, DC - MAY 23: Former Director of the U.S. Central Intelligence Agency (CIA) John Brennan testifies before the House Permanent Select Committee on Intelligence on Capitol Hill, May 23, 2017 in Washington, DC. Brennan is discussing the extent of Russia's meddling in the 2016 U.S. presidential election and possible ties to the campaign of President Donald Trump. (Photo by Alex Wong/Getty Images)

White House Press Secretary Sarah Sanders announced on Wednesday that President Donald Trump has revoked the security clearance of former CIA Director John Brennan, a persistent critic of the president. Trump’s action almost certainly violates the Constitution.

Brennan, who led the CIA during President Obama’s second term, frequently criticizes Trump in the printed press and during cable news appearances. In a Washington Post op-ed Brennan published last June, Brennan wrote that Trump “has shown highly abnormal behavior by lying routinely to the American people without compunction, intentionally fueling divisions in our country and actively working to degrade the imperfect but critical institutions that serve us.”

Brennan also compared Trump to the “corrupt, incompetent and narcissistic foreign officials who did whatever they thought was necessary to retain power” that Brennan analyzed during his more than three decades at the CIA.

Though the president has broad authority over matters of national security generally and over security clearances in particular, no government official may violate the First Amendment. One of the greatest sins such an official can commit under that amendment is “viewpoint discrimination.” That is, while the president may be allowed to cancel someone’s security clearance for a wide range of reasons, they may not do so because they disagree with the person’s opinions.

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The White House, for its part, claims that Trump revoked Brennan’s clearance because of his “erratic conduct.” If, in fact, Brennan has behaved irresponsibly or shown signs of mental decline, that could be a legitimate reason to revoke his clearance. But it is likely that this claim that Brennan behaved erratically is merely a pretext. And even if Trump does have legitimate reasons for stripping Brennan’s clearance, Brennan still may have a constitutional right to a hearing.

In Greene v. McElroy, the Supreme Court considered a defense company executive who was stripped of his security clearance largely due to his ex-wife’s association with people believed to be communists. Chief Justice Earl Warren’s opinion for the Court in Greene is nuanced, and it does not speak exactly to Brennan’s case. But it does suggest that Brennan is entitled to a hearing before he loses his clearance.

The specific holding of Greene is that “in the absence of explicit authorization from either the President or Congress” the government was “not empowered to deprive petitioner of his job in a proceeding in which he was not afforded the safeguards of confrontation and cross-examination.” Greene strongly implied that these safeguards are constitutional requirements — among other things, Warren wrote that the government’s conduct “raised serious constitutional problems” — but also left open the possibility that certain safeguards could be stripped away either by the president or an act of Congress.

So, while Greene is not a slam dunk case for Brennan, it gives him a very strong argument that he has a right to a hearing and other due process protections before he loses his security clearance.

Brennan’s biggest problem, however, is not legal. It is political. Sure, it is unconstitutional for Trump to punish a former government employee because that employee criticizes Trump, but it is also unconstitutional to ban people from entering the United States because they are Muslims. That didn’t stop Republicans on the Supreme Court from upholding Trump’s Muslim ban.

So, while stripping away Brennan’s security clearance is almost certainly unconstitutional, it is fairly likely that the Republican-controlled Supreme Court will, if called upon to do so, let Trump’s actions slide.